In early February, the ambulance service American Medical Response of
Connecticut (AMR) settled a case with the National Labor Relations Board (NLRB)
regarding a former AMR employee who was fired for posting derogatory remarks
about her boss on her personal
Facebook page. A private settlement was reached between AMR
and the employee, according to the Wall Street Journal.
“In a lot of ways, this settlement muddies the waters,” Regina
Robson, JD, assistant professor of law for Saint Joseph’s University
explained to O&P Business News. “The NLRB only issued a
complaint; it did not actually issue an opinion which they would have if the
case had not been settled. However, the complaint which was filed by the NLRB
does represent a shift from an earlier NLRB Memorandum in which they found that
a media policy developed by Sears did not chill the employee’s right to
engage in concerted activity. Because a decision was not reached in the AMR
case, the NLRB’s has not provided detailed guidance concerning their
thinking. Employers are left to ponder what the implications of this recent
decision are for their employee media policies.”
Robson said that the facts behind the termination and subsequent legal
action were complicated by other factors. The ambulance worker had a previous
grievance with the company involving a complaint with a customer. Prior to the
hearing, the employee requested union representation, which was denied by the
company. Later, on her Facebook account, the employee made negative comments
about her boss. Some of her Facebook friends, who also work for the company,
saw her comments and began discussing the company on Facebook.
Word got back to AMR regarding the comments and the employee was
terminated. The NLRB filed a complaint against AMR claiming that there is
protection against employee termination in this case due to concerted activity,
which is protected under the National Labor Relations Act. Concerted activity
is defined as communication among employees seeking to improve working
conditions, according to Robson.
“It is a novel approach,” Robson said. “Concerted
activity has been around for a while, but this is the first time that I can
recall that a case has been made based on the fact that the communications were
on Facebook. Facebook has replaced the water cooler or corner pub.”
One of the requirements of AMR’s
social media policy was that all employees needed permission
before discussing the company online. It also stated that any employee who
makes derogatory comments about the company or its supervisors on social media
sites can be terminated. But in the settlement, AMR agreed to revise its
original social media policy, allowing coworkers to discuss wages, hours and
working conditions with other coworkers outside of the workplace. According to
the NLRB, AMR will no longer terminate an employee who engages in those
discussions on social media sites. AMR’s original social media policy was
considered too general or too broad for its own good. It limited the rights of
its employees.
Margaret (Molly) DiBianca, JD, attorney, Young, Conaway, Stargatt &
Taylor, argued that we are entering uncharted waters regarding an
employee’s social media rights.
“This is a new area of the law and it is certainly not developed at
all,” DiBianca said. “There really is no case law in this area, with
respect to the private sector. But the basic fundamental premise is [that] your
policy can not be overly broad.”
DiBianca recommended that employers specifically address their concerns
in their social media policy and have the policy reviewed by legal counsel.
Robson said that certain communication concepts from the “paper age”
are being layered onto this “other kind” of communication.
“A social media policy, which unduly restricts employee
communications could get an employer in trouble — even if it is never
enforced,” Robson noted. “The NLRB takes the position that such a
policy could have a ‘chilling effect’ on employees’ willingness
to engage in concerted action on conditions of employment.”
Constructing a social media policy which is narrowly tailored and
provides the employee ample rights will help protect the employer against
potential litigation.
On a management level, it is important for employees to know the
position of the company in regards to a social media policy. Employees will be
held to a professional standard and employers expect their workers to meet
those standards.
“Sometimes in a small business, people use that informality to
avoid putting a policy in place,” Robson said. “And then when the
worst case scenario occurs, the employee can say ‘I didn’t know’
and the employer might be charged with discriminatory enforcement. Even for the
small business, it is important to at least introduce some provisions regarding
a policy.”
On the other hand, Robson said that a poorly social media drafted policy
can do more harm than good. A company can have a policy that is blatantly
unlawful, restricting employee’s rights or a policy that is enforced for
some workers, but not others. Robson insisted that if a company plans to create
a social media policy, they must consistently update, review and abide by the
rules put in place. Ignoring the policy for years, could come back to hurt the
company, just when the company needs it the most.
“Employers have to review their policies,” Robson said.
“Part of the problem is that Facebook and Twitter are mixed venues. My
guess is that everyone has Facebook friends who they work with and friends that
they don’t work with. How do you determine, whether someone is discussing
conditions of employment online or just venting to friends on Facebook? If some
of your coworkers happen to be your friends on Facebook, does that
automatically bring you in under concerted activities? It’s tricky and
right now I don’t think there is a lot of clarity.” — by
Anthony Calabro
For more information:
Trottman, Melanie, The Wall Street Journal. Facebook
firing case is settled. Available at: www.online.wsj.com. Accessed March 3,
2011.
Disclosure: Regina Robson, JD, and
Molly DiBianca, JD, have no relevant financial relationships.
When used appropriately, social media tools such as
Facebook, LinkedIn, Twitter and blogs, create wonderful opportunities to
communicate with customers online. Social media sites are engaging and can be
immensely valuable, when used appropriately. Since only a few Tamarack
employees are involved in publishing and monitoring company-related
communication online, we have not put a social media policy in place. We
believe that our employees are considerate of their coworkers and the company.
However, if an employee were to make a defamatory remark about any person,
company or organization, his or her conduct would be considered inconsistent
with our company’s ethics and would risk dismissal.
— Jason Pawelsky
Sales and marketing
manager, Tamarack Habilitation Technologies
